Respondents' Memo in opposition To The Applicant To stay The Mandate of The U.S. District Court For The Eastern District of N.C.
Public Court Documents
February 27, 1984

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Case Files, Thornburg v. Gingles Hardbacks, Briefs, and Trial Transcript. Respondents' Memo in opposition To The Applicant To stay The Mandate of The U.S. District Court For The Eastern District of N.C., 1984. ac9b8e16-d592-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/e857cc6f-7c37-4a2c-b477-8c85590097d6/respondents-memo-in-opposition-to-the-applicant-to-stay-the-mandate-of-the-us-district-court-for-the-eastern-district-of-nc. Accessed July 20, 2025.
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tN THE SUPREME COURT OF THE UNITED STATES October Term, 1983 No. RUFUS EDMISTEN, et 31., Petitioners, v. RALPH GINGLES, et o.L., Respondents. RESPONDENTS' },IEMORANDI]M IN OPPOSITION TO THE APPLICATION TO STAY THE MANDATE OF THE I]NITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA TABLE OF CONTENTS I. History of the North Carolina Redistricting and of Ehe Case II. The Facts Fcund by the District Court Support the Finding of Discriminatory Result A. The Extent of Any History of Official Discrimination That Touched the Right to Register or Vote B. The Extent to l,Ihich Voting is Racially Polarized C. The Use of the Majority Vote Requirement D. Effects of Discrimination in Education, Employment, and Health E. Use of Racial Appeals in Political Campaigns ... F. Extent of Election to Public Office G. Tenuousness of the Underlying State Policy III. Petitioners must Overcome the Presumption that the District Court's Denial of Petitioners' Applicati.on for a Stay is Correct PAGE 6 6 IV. Petitioners Have Not Met the for Granting a Stay Pending Standard Appeal TABLE OF CONTENTS A. Petitioners Have Not Established a Probability That TheY Will Ultimately BL Successful on the Merits of the ApPeal 1. Section 5 Preclearance does not Preclude Section 2 Review 2. The District Court did not err in aPPlYing the standard for findlng a violation of Section 2 of the Voting Rights Act The District Court was not clearly erroneous in deter- mining that there is severe and persistent raciallY polarized voting in the dis- tricts in question The District Court did not erroneously reject Ehe State's evidence PAGE l0 t1 3. t4 L7 4. B. Petitioners Have Failed to Show That They Will be lrreParablY Harmed if a StaY is Denied 1. Complianee with the District Court Order will not undulY disrupt the 1984 election 2. A stay is serve the meaningful not needed to Pre- State's right to a appeal 19 19 2L 23 26 C. The Irreparable Harm to Respondents and the Injury to the Public Interest oi Glanting a Stay Outweigh any Possible Harm to Petitioners of Denying a Stay v. Conclusion - II- On January 27 , f984, the United States District Court for the Eastern District of North Carolina, sitting as a three judge court, entered a unanimous Order which (1) declares that the apportionment of the No-rth Carolina General Assembly (hereafter the "General Assembly") in seven challenged districts violates Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. S1973 (hereafter "the Voting Rights Act"), (2) enjoins elections in those districts, and (3) gives petitioners seven weeks to enact a districting plan which does not violate the Ll 2/ Act. This matter is before the Court on the application of Rufus Edmisten, Attorney General of the State of North Carolina, (hereafter "petitioners") for a stay of the January 27, 1984 Order. Ralph Gingles, €t 41., on behalf of the certified class of all black citizens of North Carolina who are registered to vote (hereafter "respondents") oppose the application on the grounds that (1) a stay of the District Court's Order, whieh would enable the Lg84 elections to be held under a districting Plan which the three judge Court has determined is illegal, woul-d irreparably harm respondents ; (2) peti- tioners have not demonstrated that comPliance with the District Court's Order will i-rreparably harm them, and (3) Ll The January 27, 1984 Order was entered concurrently-with I,lemorandum Op inion-which is , hereaf ter , cited as "Mem. Op . " copy of the i{emorandum Opinion is provided herewith. 2/ The North Carolina House of Representatives consists of l-20-seats apportioned into 53 districts. The District Court's Order coverl- 26 of those seats in the following 5 House DisEricts: (1) House District ll8, composed of tJilson, Edgecombe, and Nash iounties, has 4 repiesentatives; (2) House District llzl, composed of Wake County, has six representatives; (3) House District t123, composed of Durham County,-has 3-representatives; (4) House Dislricr !139, composed oi part of Forsyth County, !a-s- 5 lePfe- sentativei; and til House bistrict 1136, composed of Mecklenburg County, has 8 representatives. The Court's Order leaves the state free to proceed with elections in the remaining 48 House districts, as the violations of Section 2 can be correited in each of these five districts without affecting any other district. The North Carolina Senate consists of 50 seats apportioned into 29 districts. The District Court's Order covers 5 of these (Footnote 2 cont'd) a A petitioners have not demonstrated a likelihood that this Court will reverse on the merits. I. History of the North Carolina Redistricting and of the Case. The District Court's Order followed a lengthy redistrict- ing process in North Carolina. A brief summary of the process is helpful to understanding the Order. North Carolina initially enacted redistricting of its House of Representatives and Senate in response to the 1980 Census in July, 1981. This action was fiLed on September L6, 1981-, claiming, inter alia, that the districting of the General Assembly was iLlegal and unconstitutional in that (1) it had population deviations of over 202 in each house in violation of one person, one vote requirement of the equal protection clause of the Fourteenth Amendment to the United States Constitution; (2) it had been enacted pursuant to provisions of the North Carolina Constitution which were required to be but had not been precleared under Section 5 of the Voting 3/ Rights Act, 42 U.S.C. S1973I and (3) the use of multi-member districts illegaIly submerged minority population concentra- tions and diluted minority voting strength in violation of Section 2 of the Voting Rights Act. After the Complaint was fi1ed, the State of North Carolina submitted the provisions of the North Carolina Constitution, which prohibit dividing counties in the formation of a legislative district, to the Attorney General of the United 2l (cont'd) seats in two Senate Districts: (f) Senate District #22, composed of MeckLenburg and Cabarrus Counties, has 4 senators; and (2) Senate District ll2, composed of Bertie, Chowan, Northampton, Hertford and Gates Counties and parts of Halifax, Martin, Edgecombe, and Washington Counties, has one senator. The Court's Order leaves the State free Eo proceed with elections in most other districts although remedying the violation in Senate District ll2 wLLL necessarily affect the adjacent districts as we11. 3/ Forty of North Carolina's 100 counties are covered by Section 5 of the Voting Rights Act. -2- States for preclearance under Section 5 of the Voting Rights Act. The Attorney General, in a letter signed by William Bradford Reynolds, objected to the provisions finding that the use of large multi-member districts "submerges cognizable population concentrations into larger white electorates. " Mem. Op. at 5. The Attorney General, acting through Reynolds, also found the 19Bl House, Senate and Congressional plans, as well as two subsequent House plans and one subsequent Senate plan to be racially discriminatory insofar as they affected the 40 of North Carolina's 100 counties subject to Section 5 review. Despite warnings from special- counsel, black eitizens' groups and various i-egisl-ators that this method could result in impermissible dilution of black citizens' voting strength, the General Assembly continued to use multi- member districts in the five House districts and one Senate district in question. Mem. Op. at 62. Five of these six districts consist entirely of counties not covered by Section 5 and, therefore, were not subject to the Attorney General's review. After a full evidentiary tria1, the District Court found that, considering the totality of the relevant circumstances, Ehe specified six multi-member districts result in the sub- mergence of black registered voters as a voting minority and in black voters' having less opportunity than do other members of the electorate to participate in the political process and to elect representaLives of their choice. The District Court further concluded that, Senate District No. 2, because it fractures minority voting strength, has the same result. (Mem. Op . at 65 -66) II. The Facts Found by the District Court Support the Finding of Discriminatory Result. Section 2 of the Voting Rights Act was by the VoLing Rights Amendments of L982, 96 29, 1982) . The amendment was enacted after amended in L982 Stat. 131 (June extraordinary -3- national and congressional debate. The congressional examinaEion includes over 5,000 pages of committee hearings, and extensive debate in the comrnittees and on the floor of both houses over the course of a year and a half. The result of this monumental- congressional effort was an amendrnent to SecLion 2 which provides that a claim of unlawful vote dilution is established if, "based on the totality of circumstances, ',' members of a racial minority "have less opportunity than other members to participate in the political Process and to el-ect representatives of their choice," 42 U.S.C. S1973, as amended. The Committee Reports accompanying the amendment make plain the congressional intent to reach election plans that minimize or cancel out the voting strength of minority voters, S. Rep. No. 97-4L7, 97th Cong., 2d Sess. at 28 (L982) (hereafter Senate Report); H. Rep. No. 97-227, 97t]n Cong., 1st Sess. at 17-18 (1981) (hereafter House Report). The Senate Report, at pages 27-30, sets out a detailed and specific road map for the application of the amended Section 2. Although the amendment embodied a clear change in the 1aw, the inquiry it requires is familiar to the trial courts from a decade of applying the analytic f::amework of white y. Regester, 4L2 U.S. 755 (1973). Thus the "totality of circumstances" approach specified by Congress is not novel. I,rlhen called upon to aPply the statute, as amended, to a claim of unlawful dilution, Congress directed the federal courts to determine racial vote dilution by engaging in an intenseLy local appraisal of the interaction of the challenged electoral mechanism with the relevant factors enumerated in the Senate Report at 28-29. It is apparent from the analysis of Section 2 contained in the Memorandtrm Opinion, see especially Mem. Op. at 14, and from the detailed assessment of the facts, that the District Court understood its congressional charge, and applied the intent of Congress to the facts of this case' -4- Upon consideration of numerous stipulations, voluminous documentary submissions, and eight days of trial testimony, the District Court, whose members were three life long North Carolina residents, carefully and thoroughly examined each of the relevant factors. The District Court deLermined that there was amPle evidence of six of the seven factors set out by Congress before concluding that a violation was established by the totality of circumstances. A. The Extent of Any History of Official Discrimination That Touched the Right to Register or Vote. The current disparity in black and white voter regis- tration is a legacy directly tracable to the direct denial and chilling by the State of registration by black citizens' The use of a literacy test until L970 and anti-single shot voLing laws and numbered seat requirements until L972 Lrad the intended effect of diminishing minority voting strength. The racial animosities and resistence with which white citizens have responded to attempts of black citizens to Participate effectively in the political process are still evident today. Mem. Op. at 26-3L. B. The Extent to Which Voting is Racially Polarized. Within each challenged district racially polarized voting is persistent, Severe, and statistically significant' Mem. 0p. at 49-50. fn House District No. 8 it is so extreme that, all other factors aside, no black has any chance of winning. Mem. Op. at 57. To have any chance of electing candidates of their choice, black voters must rely on single- shot voting, thereby forfeiting their right to vote for a fu1l sl-ate of candidates. Mem. Op . at 52. C. The Use of the ttaj ority Vote neq . North carolina has a majority vote requirement which necessarily operates as a general, ongoing impediment to any cohesive voting minority's opPortunity to elect candidates of its choice in any contested primary. Mem. Op. at 38. -5 Effects of Discrimination in Education, Emplovment, and Health. North Carolina has a long history of public and private racial discrimination in almost all areas of 1ife. Segregatory laws were not repealed until the late 1960's and early 1970's. Public schools were not significantly desegregated until the early 1970's. Thus, blacks over 30 years ol-d attended qualitatively inferior segregated schools. Virtually al1 neighborhoods remain racially identifiable, and past discrimination in employment continues to disadvantage blacks. Black house- holds are three times as likely as white households to be below poverty level. The lower socio-economic status of blacks results from the long history of dibcrimination, gives rise to special group interests, and currently hinders the group's ability to participate effectively in the political process. Mem. Op. at 31-36. E. Use of Racial Appeals in Political Campaigns. From the reconstruction era to the present time, appeals to racial prejudice against black citi zer:s have been used effectively as a means of influencing voters in North Carolina's political campaigns. As recently as 1983, political campaign materials used in North Carolina reveal an unmistakable intention to exploit white voters'existing racial fears and prejudices and to create new fears and prejudices. Mem. op. 38-40. F. Extent of Election to Public Office. The overalL extent of election of blacks to public office at all leveLs of government is minimal in relation to the percentage of blacks in the total populaEion, and black candidates continue to be at a disadvantage. With regard to the General Assembly in particular, black candidates have been significantly less successful than whites. For example, black candidates who have won Democratic primaries were three times as likely to lose in the general election as were their white Democratic counterparts. I4em. 0p. at 4L-42, 47. The 1evel of participation of black citizens in the political process is also minimal and is largely confined to the relatively few forerunners who have achieved professional D. -6- status or otherwise emerged from the generally depressed socio-economic status which remains the present lot of the great bulk of black citizens. Mem. Op. at 59. G. Tenuousness of the Underlying State Policy. The poLicy was to divide counties when necessary to meet population deviation requirements or to obtain Section 5 preclearance. Many counties, both those covered by Section 5 and those not covered by Section 5, vlere divided. The specific dilution of black voting strength in the districts chall-enged was known to and discussed in legislative deLi- berations. The policy of dividing counties to resolve some problems but not others justify districting which resul-ts in racial vote dilution. Mem. 0p. at 63-64. The policies behind the creation of Sentate DistricE No. 2 were to protect the incumbent and to have the lowest permissible sLze of black population which would survive Section 5 preclearance. These do not outweigh a racial dilution result. Mem. 0p. at 64. In response to the District Court's findings, petitioners challenge only one aspect of one of the findings of fact. Petitioners challenge the level of severity, but not the existence, of racially polari-zed voting. These findings taken as a whole are more than adequate to demonstrate that the District Court foll-owed the con- gressional intent in analyzLng the facts of the case and to support the ultimate finding of Ehe District Court that the use of the multi-member districts in question and the configuration of Senate District No. 2 have the result of denying to respondents an equal opportunity to eleet candi- dates of their choice. III. Petitioners must Overcome the Presumption that the District Court's Denial of Petitioners' Application for a Stay is Correct. On February 9, 1984, the three judge District Court unanimously denied petitioners' Motion for a Stay of the -7- injunction pending appeal. The District Court had before it the memoranda of the defendant-petitioners which set forth substantially the same arguments that the petitioners have presented to this Court. The three North Carolina judges are familiar with the districts in question, the time needed to comply with the Court's Order, the election and political process, and the normal election timetable in North Carolina. Their determination that a stay is not warranted is entitled to great deference in this Court. As Justice Powel1 stated for the Court in Graddick v. Newman, 453 U.S. 928 (1981): tAl Circuit Justice should show great "reluctance, in considering in-chambers stay applications, to subsiitute thisl view for that of other courts that are closer to the relevant factual considerations that so often are critical to the proper resol-ution of these questions. " 453 U. S. at 934-935, citing Times-Picayune Pub. Corp. v. Schulingkamp, 4L9 U.S. 1301-, I3O5, (Powelll Circuit Justice, L974) and Graves v. Barnes, 405 U.S. L20L, L203 @ Justice, L972). This deference to the lower court gives rise to a pre- sumption that the decision of the District Court on the proper interim disposition of the case is correct. Rostker v. Gol-dberg, 448 U. S . 1306 , 1308 (Brennan, Circuit Justice , 1980 ) ; Inlhalen v. Roe, 423 U.S. 1313, 1316 (Marsha1l, Circuit Justice, ]-975); Breswick v. United States, 100 L.Ed. 1510, 1513 (Harlan, Circuit Justice, 1955). In order to prevail on their application, petitioners must overcome this presumption. IV. Petitioners Have Not Met the Standard for Granting a Stay Pending Appeal. A single justice will grant a stay pending appeal on1-y in extraordinary circumstances. Graddick v. Newman, 453 U.S. at 933; Whalen v. Roe, 423 U.S. at 1316; Graves v. Barnes, 405 U.S. at L203; MaEInum v. Coty, 262 U.S. 1-59, 164 (1923). "To prevail here the applicant must meet a heawy burden of showing not only that the judgment of the lower court was erroneous on the merits, but atso that the applicant will suffer irreparable injury if the judgment is not stayed pending appeal." Whalen v. Roe, supra at 1316. -8- Specifically, the petitioners bear the burden of demon- strating each of the fo11-owing: (A) Four justices will vote to note probable juris- diction and that five jusEices are likely to conclude that the case was erroneously decided below; (B) Petitioners will- suffer irreparable harm pending the appeal if the stay is not granted; and (C) In balancing the equities, the harm to peLitioners denying the sEay outweighs the harm to respondents and the public interest of granting it. Rostker v. Gol-dberg, U.S. at 1308; Graves v. Barnes, 405 U.S. at L203; of to 448 Re ublican State Central Comqrttee v. Ripon Soii .' 409 U.S. 1222, L224 (Rehnquist, CircuiL Justice, 7972). A. Petitioners Have Not Established a Probability That They Will Ultimately Be Successful on the Merits of the Aooeal. The Memorandum opinion of the District court is a 7L page careful, thoughtful and schol-arLy oPinion issued unanimously by the District Court after receiving full- briefing by the parties. Its findings of fact are thorough, detailed and meticulous and were made after an eight-day trial, and after receipt of voluminous materials including depositions, exhibits, and stipulations of fact. The unanimous opinion of the District Court, after ful1 consideraLion of the merits, is presumptively correcL. Graddick v. Newman, 453 U.S. at 933; Rostker v. Gold-berg, U.S. at 1308; Whalen v. Roe, 423 U.S. at 1316; Graves v. 448 Barnes, 405 U.S. at L20Z-L203. While petitioners attempt to suggest thaE the acLion raises novel- questions of 1aw concerning the amendment of Section 2 of the Voting Rights Act, in fact there is littl-e new in the Dis- trict Court's approach. The District Court's Opinion indicaLes that the District Court used the analytic framework of White v. Regester, Supra and its progeny. Petitioners do not argue that it was appropriate to follow that line of cases, or to util-ize the factors listed on pages 28-29 of the SenaEeReport. Instead, with one -9- exception petitioners suggest questions which deal exclusively with the proper application of established case law to the -!-tfacts of this case. None of the four questions raised by the petitioners is sufficient to suggest that this Court will reverse on the 5l merits. - L. Section 5 preclearance does not preclude Section 2 Review. House District No. 8 and Senate District No. 2 con- tain counties which are covered by Section 5 of the Voting Rights Act and were precleared by the Attorney General of the United States. Petitioners assert that this Section 5 preclearance has a collateral estoppel effect on respondents with regard to their claim under Section 2 of the Voting Rights Act. Petitioners cite no authority to supPort their position except Morris v. Gressette, 432 U.S. 49L (L977). The court in Morris v. Gres_get'lg, El1pfa, did not hold that Section 5 preclearance precludes independent Section 2 review. Instead, the Court held that a private Party can not seek District Court review of the Attorney General's action under Section 5 of the Voting Rights Act. In fact, in addressing a parallel issue to the issue raised here by petitioners, the Court rejected the claim. "Where the discriminatory character of an enactment is not detected uPon review of the Attorney General, it can be challenged in traditional con- stitutional litigation." 432 U.S. at 506-07. The District Court noted that two critical elements of collateral estoppel are lacking in this instance. First, the Attorney General's determination was made in a non- adversarial administrative proceeding to which respondents were not a party. Second, the standard by which the Attorney 4 I The single exception is the qugstion of whether Section 5 precl-earance-has coliateral estoppel ,effect in a Section 2 prbceeding. This question is discussed in Part IVA.1, infra. 5 / Petitioners state that the standard for determining th6-appropriateness of a stay is whether-any of the matters proporla to be raised "are oi such significance and difficulty th"t there is a substantial prospect that they will .command four votes for review." Rpplication at p. 2. Petitioners cite for this proposition Gra,e-q-tf.-tgmg", 405..!'-S' l-29L (L912) F"titionei6-omLi-'tr[;-imporffice t "Of equal importance in cases presented on direct appeal --where we lack discretionary power to re{use to decide the merits is the iefatea qrr".Lib.t whether five justices are likely to conclude that the case was erroneously decided below." Id. at L203' -10- General assesses voting charges under Section 5 are different from those by which judicial claims under Section 2 ate to be assessed. See Mem. Op. at 68-69 and citations therein. Moreover, Section 5 exPressly provides that the Attorney General's failure to object to a voting change pursuant to Section 5 does not pretermit a subsequent challenge. "Neither an affirmaLive indication by the Attorney General that no objection will be made, nor the Attorney General's failure to object sha1l bar a subsequent action to enjoin enforcement of such qualification, prerequisite, standard, practice, or procedure." 42 U.S.C. S1973c. In view of the express statutory provision contemplating a de novo action, the lower court correctly denied the petitioners' cl-aim that the preclearance had a collateral estoppel effect in this case. Mem. Op. at 68-69. Accord, United States v. East Baton Rouge Parish School Board, 594 F .2d 56, 59 n. 9 (5tlr Cir. 1979) ; Ma.ior v. Treen , 574 F. Supp. 325, 327 n.L (E.D.La. 1983) (three judge court) . As there is no authority to supPort petitioners' con- tention, it is not likeIy that this Court will conclude that 6/ the District Court is in error in this regard. 2. The District Court did not err in applying the standard for finding a violation of Section 2 of the Voting Rights Act. Petitioners assert that the District Court erred as a mattser of 1aw because it "concl-uded that because the election of blacks to the GeneraL Assembly in the challenged districts was not guaranteed, Secton 2 had been violated." Application at p. 4. This assertion is a gross distortion of the District Court's analysis of the facts. The Distri.ct Court assessed each of the factors suggested by Congress and their interaction with each other before concluding that, under the totality of the cir- cumstances, the challenged districts had a discriminatory result. 6 I Even if the Court were to so rule, the ruling would affect onTt House District No. 8 and Senate District No. 2 and not any of the other five districts in question. - 11- This assertion further ignores the extensive discussion of the District Court as to the meaning of Section 2 of the Voting Rights Act, Mem. 0p. at 8-21, and its explicit state- ment that, "In determining whether, 'based on the totality of circumstances, ' a staters electoral mechanism does so 'resuLt' in raciaL vote dil-ution, the Congress intended that courts should look to the interaction of the challenged mechanism with those historical, social and political factors generally suggested as probative of dilution in W-hite v. Regester l4L2 U.S. 755 (1973)l and subsequently elaborated by the former Fifth Circuit in Zinrner v. McKeithen, 485 F.2d L297 (5th Cir. 1973) (en banc), aff 'd on other grds. sub.. ngg. East Carroll Parish School Board v. Marshall, 424 U.S. 636 (L976) (per curiam)." Mem. 0p. at L4. See also Mem. Op. at L7, "[T]he fact that blacks have not been elected under a challenged districting plan in numbers proPortional to their percentage of the population Idoes not alone establish that vote dilution has resultedl . " Thus petitioners have miscast the analysis of the District Court and then have complained that their distorted inter- pretation, not the District Court's actual analysis, was an error of law. The District Court thus clearly and exhaustively examined the totality of the circumstances by assessing each of the factors suggested by Congress in the legislative history. In contrast to the District Court's complete and extensive findings of fact, petitioners have focused on isolated facts, taken out of context, to suPport its proposition that the District Court required "guarantees" or "safe seats." Petitioners focus on electoral success in Forsyth County to demonstrate their point. They ignore electoral f ailures such as (f) the uniform defeat of appointed black incumbents which resulted in no blacks being elected to the House of 7l Representatives from Forsyth County in L978 and 1980; (2) 7 / The evidence showed that the General Assembly and ran blacks who were appointed to bids for election at the end while blacks who were elected to as incumbents were successful, all the General Assembly lost their of the appointed term. -L2- the defeat in 1980 of the black who had been elected to the County Commission in L976 which resulted in a return to an all white County Commission; and (3) the defeat in 1978 and 1980 of the black who had been elected to the Board of Education in L976 returning the Board of Education to its previous all white status in 1978. Furthermore, the District Court concluded that 1982 was "obviously aberrational" and that whether or not it will be repeated is sheer speculation. Among the aberrational factors was the pendency of this lawsuit and the one time help of black candidates by white Democrats who wanted to defeat single member districts. Mem. Op. at 47. This skeptical view of post-litigation electoral success is supported by the legisLative history of the Voting Rights Act and the case law. Senate Report at 29, n.l-l-5; Zinnner v. McKeithen, 485 F.2d at 1307; NAACP v. Gadsden Co. School Board, 69L F.2d 978, 983 (l1th Cir. L982). The DistricL Court didnot, ss suggested, require a guarantee of election, but instead examined the whole pattern of election :Ln Forsyth County and elsewhere. For examPle, Mecklenburg County, which is big enough to have two majority black House Districts out of eight seats and one majority black Senate District out of four seats has this century elected only one black senator (from L976 to 1979) and one black representative (in L982, after this lawsuiL was filed). Mem. Op. at 43. House District No. 8 which is 397" bLack and has four representatives has never elected a black representative. Mem. Op. at 45 After noting the black successes and the black failures, the District Court concluded, "IT]he success that has been achieved by black candidates to date is, standing a1one, too minimal in total number and too recent in relation to the long history of complete denial of any elective oPportunities to compel or even arguably to support an ultimate finding that a black candidate's race is no longer a significant adverse factor in the political processes of the state either -1 3- generally or specifically in the areas of the challenged districts. " Mem. OP. at 47 -48 - Rather than requiring guaranteed election, and rather than simplistically considering erratic examples of electoral success alone, the District Court properly con- sidered Lhe extent of election as one factor in the totality of circumstances leading to its conclusion of discriminatory result. As Petitioners have misstaterl the standard actually applied by the District Court, they have not demonstrated a likelihood of ultimate success on appeal in this regard. 3. The District Court was not clearlv erroneous in determining that there is severe and persist pol-arized voting in the districts in question. Of the six factors set out by Congress which the District Court determined existed in this case, petitioners question on1-y one finding of fact: that elections in the challenged districts were marked by severe and persistent racially polarLzed voting. Application at 5. Petitioners do not deny the existence of racially polatLzed voting but differ with the three judges' determination of the degree of polarLza- tion. The standard for assessing petitioners' likelihood of success on this issue is that the District Court's findings of fact will not be reversed on appeal unless they aTe clearly erroneous. Pullman-Standard v. Swint, 456 U.S. 273, 281 (1982) Rule 52(a), F.R.Civ.P. Petitioners limit this argument to the 8/ four districLs not covered by Section 5.- Application at p. 6. Petiti-oners support their argument with examples from one post-1-itigation el-ection year, L982, ignoring the data from 1980 and L978. In addition, the data listed by petitioners is misleading and deceptively out of context. For example: (f) Peritioners point out that in the L982 Mecklenburg House primary, black candidate Berry received 502 of the white 8/ PeEitioners have apparently miscounted. There are actiially five districts not covered by Section 5 which are subject to the DistricE Court's Order: House DistricE Nos. 39 (Forsyth), 36 (Mecklenburg), 23 (Durham) and 2L (Wake) and Senate District No. 22 (Mecklenburg and Cabarrus). -14- vote. The District Court noted this stating that it "does not alter the conclusion that there is substantial racially polarized voting in Mecklenburg county in primaries. There were onl-y seven white candidates for eight positions in the primary and one black candidate had to be elected. Berry, the incumbent chairman of the Board of Education, ranked first among black voters but seventh among whites." Mem. Op. at 53 (2) Petitioners point ouE that in the 1982 House election in Durham County, bLack candidate Spaulding received votes from 477" of the white voters and won. Petitioners fail to note thaE in the Lg82 general election there was no Republican opposition, and spaulding was, for a1-1 practical purposes, unopposed. Thus a majority of white voters failed to vote for the black incunrbeng even when Lhey had no other choice. Mem. Op. at 55 (3) Petitioners point to Dan Blue's electoral success in Wake County but fail to note that in primaries 60i: to 807. of white voters did not vote for the black candidate compared to 767" and 807. of black voters who did. Mem. op. at 56. (4) Petitioners point out that in Forsyth county the two black candidates in 1982 were successful but fail to note that white voters ranked the two black candidates seventh and eighth out of eight candidates in the general election while black voters ranked them first and second' Mem. Op. at 54 (5) As a final example, while noting that black elected incumbents have been re-e1ected, petitioners fail to note that black Democratic candidates who survive the primary are only one-third as 1ike1y as white Democrats to win in the general , elections. Thus, petitioners focus on bits and pieces of evidence taken out of context. Petitioners do not, as is required, examine the record as a who1e. The three judges who heard the evidence did consider each of the facts which petitioners -15 - point out, together with the surrounding circumstances, and concluded that these pieces did not alter the conclusion of severe and persistent racially poLarized voting. This conclusion is not clearly erroneous. Petitioners erroneously claim that the District Court determined racially polarization by labeling every election in which less than 507" of the whites voted for the black candidate as racially polarLzed. A1-though it is true that no black candidate, whether or not opposed and whether or not an incumbent, ever managed to geL Votes from more than 507. of white voters, this is not the standard the District Court used. Instead, the Distric! Court based its ultimate conclu- sion of severe and Persistent racially po1-arized voting on an exhaustive analysis of the evidence. The District Court's assessment can be summarized in three findings: 1. The correlation between the race of the voter and the race of the eandidate voted for was statistically significant at the .00001 level- in every election analyzed. Although correl-ation coefficients above an absolute value of .5 aTe relatively rare and those above ,9 aTe extremely rare, aLl correl-ation coefficients in this case were between .7 and .98 with most above .9. Mem. Op. at 50 and n.30. 2. In all but two elections the degree of polarization was so marked that the results of the election would have been differenE depending on if it had been held among only white voters or among only black voters. The two exceptions were elections in which black incumbents were re-e1ected, one unopposed, and neither receiving votes from a majority of the white voters. The Court accePted respondentsr expert's use of the term "substantively significant" in these circum- stances. Mem. Op. at 50 and n.31. Although petitioners' expert disagreed with this definition, he offered no alterna- tive definition supported either by case 1aw or political science literature. Mem. Op. at 51, n.32. -L6- 3. The District Court considered voting patterns to support its conclusion of severe racial poLatization as follows: On the average, 8L.72 of white voters did not vote for any black candidate in the primary elections. In the general elec- tions, white voters al-most always ranked black candidates either l-ast or next to last in the multi-candidate field except in heavil-y Democratic areas; in these latter, white voters consistently ranked black candidates last among Democrats if not last or next to last among a1l can- didates. In fact, approximately two- thirds of white voters did not vote for black candidates in general elections even after the candidate had won the Democratic primary and the only choice was to vote for a Republican or no one. Black incumbency allevi-ated the general leve1 of polarization revealed, but it did not eliminate it. Some black incum- bents were reelected, but none received a majority of white votes even when the election was essentially uncontested. These findings are more than adequate to support conclusion polarized. that voting in the districts in question is This Court is not 1ike1y to conclude that the the racially finding is clearly erroneous. 4. The District Court did not erroneousl ect the State I s evidence. Petitioners claim that the District Court erroneously concluded as a matter of 1aw that certain elements of the State's evidence were not relevant. Application at p. B. Without citing the opinion below, P€titioners give three examples of factors they claim the Court failed to consider. In fact, the District Court specifically admitted' considered, and weighed each of the Stage's evidentiary points, and did not summarily rejecg them as a matter of 1aw. In essence, petitioners are complaining of the weight given Lhese factors by the District Court in making its findings of fact. Petitioners claim that the lower court, as a matter of law, improperly rejected their evidence (1) that some black voters did not support the respondents' allegations , (2) that some black and white politicians who testified for the State were opposed to respondents' claims, and (3) that recently there has been some increase in the ability of blacks to participate in the state's political processes. Application at p. 8. In fact, the District Court carefully evaluated the -L7 - State's evidence on each of these points. With regard to the first contention, the Court considered the testimony of all the State's witnesses, including the putative members of the plain- tiff class and, although noting that they were a "distinct minority" within the plaintiff class as certified, acknowledged "their experience, achievement and general credibility as wit- nesses." Mem. Op. at 60. The Court further noted that even the State's witnesses did not deny the present existence of vote dilution but simply disagreed with the remedy. Mem. Op. at 60-61. The Court also considered the other two factors mentioned by petitioners. It noted that in some, but not all areas of the State an "increased willingness on the part of influential white politicians" to support the candidates of some minority group members, and a "measurable increase" in the ability of some black ciEizens to participate in the State's political processes. Mem. Op. at 58-59. What the Court did not find was that any or all of these developments were sufficiently pervasive or strong to overcome its finding that the leve1 of political participation of black citizens was stil1 minimal and that their voting strength was being diluted in each of the challenged districts. Id. The District Court found, on the factual record made in this action, an identifiable black community whose "ability to participate" and "freedom to elect candidates of its choice" (emphasis in original) is diminished by the challenged legislative districts. Mem. Op. at 60-61. Following the Congressional determination Ehat such dilution constituted a violation of Section 2, the District Court properly weighed the State's evidence in its factual findings before concluding that a violation of Section 2 was established. Since petitioners have not established that the District Court erroneously failed to consider its evidence, this argument is not sufficient to cause this Court to reverse on appeal. Because petitioners have the District Court's 0rder is shown no basis for concluding on the merits, the application not overcome the presumption that correct on the merits, and have that the Court is likely to reverse for a stay must be denied. -18- B. Petitioners Have Failed to Show That They Will be lrreParablY Harmed if a StaY is Denied. In assessing whether or not there is sufficient irreparable injury to justify staying the injunction of the District Court, it is particularly appropriate for the Circuit Justice to defer to the judgment of the lower court judges who are closer to the facts. The District Court's refusal to grant a stay indicates Ehat it was not sufficiently persuaded that irre- parable harm would result from the enforcement of the judgment in the interim. whalen v. Roe , 423 U.S. at L317, citing Graves v. Barnes, 405 U.S. at L203'L204' This is particularly true when, as here, a three judge court has given careful consideration to the motion and has denied it unanimouslY. Petitioners make two arguments to show that they will be harmed if a stay is not granted. The first is that the injunc- tion will interrupt and cause confusion in the 1984 elections for the General Assembly. The second is that defendants' com- pliance with the injunction will foreclose the possibility of a meaningful appeal. Neither of these arguments is adequate to require that this Court stay its injunclion' 1. undulv disrupt the 1984 election. The Court stated in Reynolds v. Sims, 377 U.S. 533 (L964), "[O]nce a State's legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections were conducted under the invalid plan." 377 U.S. at 585' Petitioners offer no evidence or facts in support of the assertion that requiring them to comply with the District Court's Order would make the 1984 elections chaoLic. To the con- trary, the election is not only not imminent, it is hardly under- way. The general election is scheduled for November 2, 1984' The injurrcEion was entered on January 27, t984, before the candidate liance with the District Cour!-lrder - 19- filing period ended on February 6, 1984. Counsel for petitioners has informed counsel for respondents that the State Board of Elections plans to reopen candidate filing, at least in the districts in question, whether or not a stay is granted because some candidates who knew of the court's injunction may not have filed. No one can even know who the candidates are. The District Court's Order gavepetitioners almost two months to devise a new districting method. This is more than ample time. Petiticners conpiliation of the data necessary to comply with the District Court's Order is now complete. See Letter of February L4, L984 from Gerry F. Cohen, Director of Legisla- tive Drafting, to Representative Frank W. Ba11ance, Jr. atEached as Exhibit A. Thus, the State , Lf it wants to, has time to redistrict before the Court's March L6, f984 deadline. If a new plan is adopted by March 16, 1984, the election will not be unduly delayed. In 1982, the General Assembly did not finally enact its redistricting until April 27, LgB2, and planned to have a primary on June 10, 1982. On objection of the United States Attorney General, the primary date was moved to June 29, L982, Lwo months after the plan was enacted, and general elections were held on schedule in November. (Stipula- tions of Fact 42-47) Thus, there is adequate time for the State to comply with the District Court's Order, hold primary elections, and hold the general election in November, 1984, all in an orderly f ashion. This Court has refused to stay i-njunctions which prohibited the use of i1lega1 or unconstitutj-onal districting or apportion- ment plans even when elections were c1ose. See Busbee v. Smith, 549 F.Supp . 494 (D.C. D.C . 1982) (Georgi-a Congressional Reapportionment), applications for stays denied, U.S.-, A-95 (Brennan, Circuit Justice; Stevens, Justice, L982) (letters of Supreme Court Clerk attached as Exhibits B and C); trIise v. Lipscomb, application for stay denied, 434 U.S. 935 (Mem. L977) -20 - rev'g 434 U.S. L329 (Powel1, Circuit Justice, L977 ) (appli- cation for stay granted) (Dal1as City Council Structure); Graves v. Barnes, 343 F.Supp.704,737 (W.D. Tex. L972) (Texas Housing Representatives), application for stay denied, 405 U.S. 1201 (Powell, Circuit Justice, 1972) ; Mahan v. Howe11, 330 F.Supp. 1138 (E.D. Va. 197f) (three judge court), application for stay denied, 404 U.S. 1201 (B1ack, Circuit Justice, 1971) (Virginia General Assembly apportionment) . Petitioners claim that the need for Section 5 preclearance will further interfere with their ability to comply with the Court's Order. This does noL justify a delay in compliance in House Districts 2L,23,36 and 39 or Senate District No. 22 which can be subdivided without affecting counties covered by Section 5 and without Section 5 preclearance. Even for House District 8 and Senate District No. 2, the State can, as it did in L982, request expedited review by the United States Attorney General under 51 C.F.R. S51.32. In 1982, the Attorney General issued its letter preclearing the April 27 apportionments on April 30. (Stipulation of Fact No. 45) If preclearance should cause a problem, then the District Court has the power to order the use of an interim remedy. Revnolds v. Sims, 377 U.S. at 586. Thus, the need for preclearance does not make it impossible, or even impraetical for the State to comply with the Court's Order. Petitionershave not born the burden of showing that compliance with Ehe District Court's Order will unduly disrupt the orderly processes of holding 1984 elecLions and have not, therefore, established irreparable harm. 2. A stav is not needed to preserve the State's right to a meaningful appeal. Petitioners' second claim of irreparable harm is that com- plying with the District Court's Order will make an appeal meaningless because it will irreversibly alter the political landscape. Application at 9. Petitionerssupply no facts to support this conclusory statement. -2L- The argument that holding an election under a districting plan which compl-ies with the District Court Order would irrevo- cably al-ter the political landscape was raised and rejected in Wise v. Lipscomb, appl-ication for stay denied, 434 U.S. 935 (Mem. L977) , rev'P, 434 U. S. L329; l-334 (Powell-, Circuit Justice, L977). If this argument $/ere accepted, then stays would have to be granted in all apportionment cases in which an election might be held whil-e the appeal is pending. This has not been the practice. See cases cited at Pp. 20-2L, supra. Petitioners attempt to bolster this argr:ment by suggesting a stay should be granted because novel questions are raised. This case does not raise noveL issues but is simply the application of a clearly deLineated Congressional scheme to the facts of this Particular case using much the same method of inquiry used by District Courts since this Court decided White v. Regester, supra, a decade ago. Nor do the cases cited by petitioners support the position either that the mere existence of an unresolved question warrants a stay on appeal or that the holding of an election during an 2/ appeal requires a stay. Although the opinion on the merits in Georgia v. United States, 4Ll U.S. 526 (L973) refers to the novelty of the question at hand, there is nothing in the opinion or in the order granting the stay which suggests the circumstances under which the stay was granted or the reasons for its issuance. (See Orders grant- ing stay and denying application to vacate stay, Georgia v. United States, A-1106 (412L172 and 5 /5/72), attached hereto as Exhibit D). Oden v. Brittain, 396 U.S. L2L0, L2LL-2 (1969), arose in a completely different context. No relief had been granted bel-ow and plaintiffs sought a preliminary injunction. Justice Bl-ack denied plaintiff's motion for an injunction Eo prevent holding an eLection not because there was a legal question unresolved 9 / The presence of a quirement for granting hood that five justices 405 U.S. at L203. novel question would not meet the re- a stay which is that there is a l-ikeli- will vote to reverse. Graves v. Barnes, -22- by the Supreme Court but primarily because the lower court had neither considered the merits of the case nor ruled on the motion for an injunction. Plaintiff had not exhausted the possibility of obtaining relief from the DistricL Court. In contrast, in this instance, not only has the District Court ruled against petitioners on the motion for a stay but the District Court has ruled against petitioners on the merits. In six of the seven challenged districts, the District Court's Order requires a simple subdivision of existing legislative districts without affecting surrounding districts. In the unlikely event that the District Court's Order is reversed on appeal, it would be a simple matter to recombine these subdivided districts. There is no reason why the General Assembly cannot enact a plan in compliance with the District Court's Order and, if the Order j-s reversed on appeal, revert to the use of Chapters 1 and 2 of the North Carolina Session t0l Laws of the L982 Second Extra Session for the 1986 election. C. The Irreparable Harm to Respondents and the Injury to the Public Interest of Granting a Stay Outweigh any Possi- ble Harm to Petitioners of Denying a S tav. In acting on an application for a stay, a Circuit Justice should "balance the equities and determine on which siCe the risk of irreparable injury weighs most heavily. " Graddick v. Newman, 453 U.S. at 933, quoting Holtzman v. Schl-esinger , 4L4 U. S. 1304, 1308-09 (Marshall, Circuit Justice, Lg73). In this case both the irreparable harm to respondents of granting a stay and the public interest require that the application for a staY be denied. -Lgl In order to be entitled to a s-tay_pending lPPeal pgti- tioners must show that compliance with the District Court's Order will cause imminent irreparable harm, that is, before this Court can rule on petitioners'-jurisdictional statement. ChaEEer 9f Comr4erce v. Legal Aid Soc , 42? U.S. 1309 (Douglas, Circuit dqrgl-lgYiles & Loan v. Federal Home Loan Bank of San Francisco t frstice, 1955) . It is within petitioners' power to docket the appeal-and- file its jurisdictional statement immediately. Respondents will then have"3O days to respond. Rule 16.1, Supreme Court Rules. It is thus quiie'po""iUfe'that the Court could act on the jurisdictional statement, perhaps sununarily affirmlng, before even th-e prim3ry election tra^s Ueen held. Beciuse petitioners have not shown the imminence of ""V po"sible injury, they have not established irre- parable harm. _23- The starkly simple and obvious injury to respondents of granting a stay is an addiEional Ewo years of denial of equal opportunity to elect representatives of their choice. The District Court found that respondents have less opportunity than do other members of the electorate to participate in the political process and to elect representatives of their choice. Mem. 0p. aL 65-66. This dilution of voting strength is, in part, the result of more than 70 years of intentional disfranchisement. Id. at 65. The continuation of this vote dilution is irreparable; there is no adequate remedy for its denial. The injury to respondents is exactly what Congress intended to prevent in enacting the Voting Rights Act Amendments in 1982. In anending Secti.on 2 of the Voting Rights Act, Congressrs purpose was to increase minority participation in the political process by eliminating election methods that deny minority voters an equal opportunity to elect candidates of their choice. Maior v. TEee4, 574 F.Supp. 325, 343 (8.D. La. 1983) (three judge court); Senate Report at 193 (additional views of Sen. Dole). As Senator Moynihan said on the floor of the Senate, "Our goal was to achieve enactment of the strongest Possible bipartisan measure . to reaffirm this Nation's commitment to that most basic and fundamental guarantee which is the right of every citizen to exercise his or her right to vote for those who would represent them in Government." 128 Cong. Rec. S. 67L6, 6718 (Daily ed. June L4, L982) (Remarks of Sen. Moynihan). Congress not only intended to eliminate racial vote dilution, but aLso it intended to do so effective immediately. After extensive hearings and testimony documenting the persistent problem respecting minority voting rights 16 years after the initial enactment of the L965 Voting Rights Act, Congress con- cluded, by overwhelming margins, that the federal courts must intervene to address existing conditions of racial vote dilution. Ma.i or v. Treen, 57 4 F. Supp. at 346-47 . -24- As Senator Moynihan remarked, "[T]he iSsue of voting rights is an issue that was with us over four or five genera- tions and now into the sixth one, scarcely precipitous in our conduct and not altogether admirable in our willingness to be patient. There are some things concerning which patience is scarcely a virtue and after a point concerning which patience becomes a form of avoidance." L28 Cong. Rec. S. 67L7 (Daily ed' June 14, tg82) (Remarks of Sen. Moynihan) . This legislative history demonstrates not only the public interest in immediate remedies of violations of Section 2 but also points to the vital importance to resPondents of the rights which are at stake. This Court has also repeatedly recognized that the right to use one's vote effectively is fundamental to democracy and of paramount significance. Revnolds v. Sims, 377 U.S. 533, 555 (1964); Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). As stated by this Court in Reynolds v. Sims,377 U.S. at 555: The right to vote freely !or- the candi- date of one's choice is of the essence of a democratic society, and any restric- tions on that right strike at the heart of rePresentative government. Denying to voters the opportunity to select candidates of their choice has also been recognized by this Court to be irreparable harm. MatLhews v. Little, 396 U.S. L223 (B1ack, Circuit Justice , L96g) (denying stay in candidate filing fee case). once 1ost, it simply cannot be recovered. If the election is held under the current at large system, respondents will be irreparably harmed by being denied an equal opportunity to participate effectively in the election- on the other hand, if the multi-member districts are subdivided in a way that eliminates the discriminatory resul-t, no one will be irreparably harmed by having elected representatives LLI from smaller districts. Everyone will still be representeil lL/ Petitioner suggests that respondents will not be harmed by hotting- eiections .rnE6r the p-Ian which the District Court deter- mined is fttegat because four oi the six districts in qugstion !t3r. black incumbeii" ,f,o will probably be elected. Application at 11. In fact, ifl o.t1y tro of the seven districtg-in-question did incum- bents fite for reelection. The other two black -incumbents filed for other offices. -25- Because the continuation of a discriminatory redistricting system is an affront to the public policy, as exPressed by Congress, because delaying the right to use ones vote effec- tively is the denial of a fundamental right in a democracy, and because no one will be harmed by the use of subdivided legislative districts, the application for a stay should be denied. V. Conclusion Delaying respondents' opportunity to have an equal oPpor- tunity to elect representatives of their choice to the North Carolina General Assembly will cause respondents the irreparable harm of denying their effective participation in representative democracy. Balanced against this is, at worst, the inconvenience to petitioners of eomplying with the District Court's Order in an expeditious manner. Since the harm to respondents of granting a stay clearly outweighs the harm to petitioners of denying it, since petitioners have shown no likelihood of reversal on appeal, and since the public interest is in immediate eradica- tion of the vestiges of disfranchisement of black citizens, the Application for a Stay should be denied. This .Ab{+-eay of February, 1984. CHAMB SLIE J. WINNER Chambers, Ferguson, Watt, llallas & Adkins, P.A. 951 S. Independence Boulevard Suie 730 Charlotte, North Carolina 28202 7 o4 I 37 5- 8461 JACK GREENBERG LANI GUINIER 99 Hudson Street 16th Floor New York, New York 10013 Attorneys for Respondents -26- CERTIFICATE OF SERVICE I certify that I have served the foregoing RESPONDENTS' MEMORANDIJM IN OPPOSITION TO THE APPLICATION TO STAY THE },IANDATE OF THE I]NIIED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NORTH CAROLINA on aLl orher parties by placing a copy thereof in the post office or official depository in the care and custody of Ehe United States PostaL service addressed to: James Wallace, Jr. Deputy Attorney General for Legal Affairs North Carolina Department of Justice Raleigh, North Carolina 27602 Arthur Donaldson Burke, Donaldson, Holshouser & Kenerly 309 N. Main Street Salisbury, North Carolina 28L54 Kathleen Heenan Jerris Leonard & Associates, P.A. 900 LTth Street, N.W., Suite L020 Washington, D.C. 20006 Robert N. Hunter, Jr. 20L West Market Street Post Office Box 3245 Greensboro, North Carolina 27402 ThisJS_d"y of Februlry, 1984. -27 -